Maximising a migrant workforce (part 3)

There have been a number of stories in the media about Kiwi employers taking advantage of migrant workers’ lack of knowledge surrounding New Zealand law. While most employers wouldn’t do so knowingly, avoid the error by ensuring you understand your responsibilities as an employer

Migrant workers can help fill labour and skill shortages in the construction sector; however, it’s essential that employers grant these workers the rights they are entitled to under New Zealand’s employment laws.

Immigration New Zealand provides direction on migrant workers’ rights and simple tips on how to handle any confusion that may arise in its helpful guide Are You Employing Migrant Construction Workers?

Over the next few issues of Under Construction, we’ll continue to feature content from this guide.

A word about New Zealand employment law – migrants are protected by its minimum entitlements

Having a written employment agreement may be new to employees from other countries.

It is important to provide migrant employees with a clearly written employment agreement. This will help reduce the risk of misunderstanding.

Migrants may also want to study their signed written employment agreement to familiarise themselves with New Zealand employment conditions, such as work hours, leave entitlements and public holidays.

It is also important to understand the true nature of your employment relationship – is your migrant employee really a self-employed contractor?

Even if you agree and sign a contract saying a person is a self-employed contractor, this will not legally be the case if the situation is not genuine. If a person is an employee, then he or she will have employee rights under the Employment Relations Act and other employment laws. If it is found that the relationship is not genuinely a self-employed contractor situation, you will be liable for all employment entitlements owed.

If you, as the employer, control when and how the work is done, provide the equipment, have the power to hire other people to do the work, and the person working for you is not genuinely operating a business in their own right, it is most likely you have an employment relationship with that person and your obligations under employment law must be met. For more information visit: dol.govt.nz/nzworker-type 

Annual leave/holidays

Many migrant workers are not used to having the right to take at least four weeks of paid annual holidays/leave once they have completed a year of employment. They may not know about their entitlement to 8% of their gross earnings if their employment is less than one year.

If you employ migrant workers on a fixed-term agreement of less than one year, or as a casual worker with intermittent or irregular work patterns, they can agree to have 8% of their gross earnings added to their regular pay instead of receiving it when they end their employment or take holidays. However, you need to specify this arrangement in their written employment agreement and the amount of annual leave/holiday pay advanced in each pay period must be recorded as a separate identifiable amount from their wages. For more information, go to: dol.govt.nz/nzholidays1 

Some businesses and construction sites close for a defined period over the Christmas/New Year break. It will be important to ensure new employees are informed if this is the case, particularly if they have not been employed long enough to have accrued sufficient leave entitlements to cover the period.

In such cases, you should ensure workers know whether they will be paid for the entire period. For example, some employers allow new workers to anticipate leave not yet earned to cover the closure period.

Some migrant workers may need to accumulate their leave to make a visit to their homeland worthwhile, or they may have emergencies that require leave flexibility, due to the distance from family.

Public holidays

Migrant workers will understand public holidays, but they will need to know when New Zealand public holidays occur. If they work on a public holiday, they may not know about their entitlements under New Zealand employment law – time and a half for the hours they work. If the public holiday falls on a day they would normally work, then they are also entitled to another day off. These entitlements may be completely new to migrant workers.

“It’s important to provide migrant employees with a clearly written employment agreement to help reduce the risk of misunderstanding

Transferring a public holiday

In New Zealand, employers and employees can agree to transfer the observance of a public holiday to another working day to meet the needs of the business or the individual needs of the employee. An employer and employee should make the agreement in writing. For workers who may want to exchange public holidays for their own religious holidays, please go online at: dol.govt.nz/nzholidays2

Sick leave

Migrant workers will need to have sick leave entitlements explained to them. The five days’ paid sick leave each year after they have been employed continuously by the same employer for six months is straightforward. But they may not realise that their sick leave can be used when they are sick or injured, and also when their spouse or partner, or a person who depends on them for care (such as a child or elderly parent) is sick or injured.

Bereavement leave

Bereavement leave is a challenging area for migrant workers, as they live so far from family and home. It is often unrealistic for a migrant worker to take their entitlement of three day’s leave after six months employment to fly home to family. However, they may need this time to grieve and it is important to make sure they know that this paid leave can be taken for the death of their spouse or partner, child, brother or sister, mother or father, grandparent, grandchild, or parent of their spouse or partner. Some cultures consider cousins as ‘brothers’ so you may need to explain that for other bereavements they may be entitled to one days’ leave.

Wages no less than the minimum wage

Most migrant workers will be aware of the adult minimum wage rates. They are usually informed about this as part of the immigration information they receive and they know the rates are reviewed every year. To see the current rates, go online at: dol.govt.nz/nzwages

Deductions

Migrant workers come here to earn and it is helpful to explain their payslip to them. Any deductions from their pay need to be explained carefully and agreed to by them in writing. It is helpful for them to know about deductions required by law (such as PAYE) tax that do not require their written consent.

For more information on employment relations, pay, holidays, and health and safety, go to the Ministry of Business, Innovation and Employment’s website or call the Ministry’s helpline.

Migrants can also call MBIE’s helpline – 0800 20 90 20 – and can request ‘Language Line’ if they want an interpreter.